More on the Home Office v Harman implied undertaking in relation to litigation documents

In a case in which a company is a party, the company gives an implied undertaking to the Court to use documents obtained through litigation compulsion — discovery, subpoena, call for production, etc. — only for the purposes of the proceeding, at least until they come into the public domain, for example by being adduced into evidence at a public trial (see previous posts on the subject here). Street v Hearne [2007] NSWCA 113 is a long decision of the NSW Court of Appeal which discusses whether officers of such a company may themselves be dealt with for contempt if they use documents otherwise than for the purposes of the litigation. The Court said they could. Ipp JA went further, and said:

‘The rule applies to all persons into whose hand the discovered documents come, if they know that the documents were obtained by way of discovery or other compulsory Court process. The Court should not allow such persons to use those documents for purposes other than those for which they have been disclosed.’

And ignorance of the law is no defence.

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